Threshold Met in Chronic Pain and Return to Work Case
This action arose from a 2015 rear end motor vehicle collision. Liability was admitted. The issues at trial were threshold and damages. The defendant took the position that the plaintiff sustained minor soft tissue injuries which resolved within six months of the accident and she had returned to most, if not all of her pre-accident activities.
The threshold test has long been set by the Ontario Court of Appeal in Meyers v. Bright, 1993 CanLII 3389 (ONCA), which is a three-part test:
- Whether the plaintiff sustained a permanent impairment of a physical, mental, or psychological function?
- If yes, is the permanently impaired function important?
- If yes, whether the permanent impairment of that important function is serious?
On October 1, 2003, amendments were added to O. Reg. 461/96 to aid the definition of threshold set out in s. 267.5(3) of the Insurance Act, which codifies the test set out in Meyers v. Bright but it did change the order of analysis prescribed by the Court of Appeal, making the evaluation of permanency of impairment the last consideration in the analysis. The court must first consider whether the impairment is serious then whether it is important and finally, whether it is permanent.
Justice Gordon noted this was essentially a chronic pain case and, in Rizzi v. Marvos, 2008 ONCA 172, the Court of Appeal accepted an appropriate range of general damages in chronic pain cases to be $55,000 to $120,000.
The plaintiff also claimed loss of income and loss of earning capacity, loss of housekeeping and home maintenance ability, assistive devices, future care costs and out of pocket expenses for treatment.
The court accepted that, as a result of the accident, the plaintiff suffered from chronic pain in her right shoulder, neck and back which affects her sleep and caused intermittent depression and anxiety. Her evidence on pre-accident lifestyle was uncontradicted at trial – she was happy, outgoing, fit/active, was in a long-term committed relationship, loved to travel and worked full time in her field.
Despite the defendant’s contention that the plaintiff continues to be active, continues to travel and has advanced in her employment following the accident, the court found that, based on corroborating evidence from lay witnesses including work supervisors and her best friend and family members, she is no longer outgoing and happy. Medical evidence from her family physician, chronic pain specialist and the plaintiff’s psychotherapist also corroborated this evidence.
There were no issues with credibility despite the defendant’s comments of the plaintiff being combative and agitated during cross-examination and social media posts showing the plaintiff on several trips, baking, playing soccer and participating in yoga. Even the plaintiff’s omittance of her job promotion during direct examination did not affect the credibility finding.
Interestingly, while the defendant called expert witnesses in physiatry and orthopedic medicine and also the plaintiff’s treating physiotherapist, the plaintiff relied on the filed reports and records of her family physician, treating psychiatrist and psychotherapist. No adverse finding was made against the plaintiff for not calling oral evidence by these witnesses. The only medical oral evidence presented by the plaintiff was that of her chronic pain specialist to comment on the threshold issue, who concluded that the plaintiff’s chronic pain is permanent (but did not make a finding that it is important and serious). The court found this was sufficient as it is for the court to determine whether an impairment is important and serious based on the evidence.
On the issue of permanence, both the chronic pain specialist and defence physiatry expert agreed the impairments are permanent.
With respect to the serious requirement, the plaintiff had returned to full time employment shortly after the accident and she was provided with reasonable accommodations to allow her to work. It could not be said that her impairments substantially interfere with her ability to continue her regular employment. However, they were found to substantially interfere with most of her usual activities of daily living. Thus, the definition of serious was met.
Regarding whether the impaired functions are important, the court agreed that they were; the plaintiff experiences pain, fatigue and depression which affect virtually all of her activities of daily living.
Having met the statutory threshold, the court assessed general damages at $80,000. The other significant awards made were for loss of competitive advantage and cost of future care. Because she had been promoted at least three times since the accident, there was a very minimal award for past loss of income. Despite the promotions she had received, her work supervisors testified that she would not likely receive a promotion to senior scientist in the future.
Therefore, given her young age, the court found there was a substantial likelihood that the plaintiff will suffer economic loss without further advancement in her field. Loss of competitive advantage was assessed at $100,000. Future care costs were assessed at $3,000/year to age 70 (for personal trainer, massage therapy and chiropractic treatment). Past loss of housekeeping and home maintenance was assessed at $15,000 and future loss of housekeeping was valued at $2,500/year to age 70.
